On the ninth of January, 1872, the city of Atchison made a contract with D. C. O’Keefe to grade *Spring street, between Seventh and Tenth streets. O’Keefe sublet the contract to one Montgomery. After the latter had done a small portion of the work, he threw up his contract. O’Keefe then turned the work over to the plaintiff, who completed the grading, and presented his bill against the city for the entire amount done under the contract. The work was completed on or before the twenty-ninth of *137July, 1872, and the bill therefor presented on that day. On the first of June, 1872, O’Keefe executed this instrument:

“Atchison, Kan., June 1, 1872. .

“For value received I hereby sell and assign to E. S. McGubbin, •of the money coming to me on my contract with the city of Atchison .for grading Spring street, in said city of Atchison, the sum of $450, more or less, as soon as said work shall be completed according to said contract with said city, and I hereby authorize the proper city •authorities to pay such sum to said McGubbin. D. G. O’Keeee.”

In February, 1872, and before any work had been done, O’Keefe had given two orders on the city on account of this contract, (one for the sum of $125, and the other for $18.25.) These orders were accepted by no one, but simply filed with the clerk or treasurer. In August, 1872, and after the work had been completed, certain garnishee proceedings were com*menced by creditors of O’Keefe, and in them the city ordered to pay the amount due under this contract to such creditors. Thereafter the plaintiff brought his action in the district court against the city for the full amount due under the contract. The court instructed the jury that plaintiff was entitled to recover for this sum, less the amount of the two orders given by O’Keefe. The jury brought in a verdict for the full amount. The court then offered to enter judgment on the verdict, providing the amount of these two orders was remitted by plaintiff. The plaintiff declined to remit, and the verdict was thereupon, ■on motion of the city, set aside. The plaintiff brings the case here, ••and asks that the district court be directed to enter judgment on the werdict, as returned by the jury. By offering the plaintiff judgment iproviding he would remit the amount of these orders, the court, in ■ effect, overruled all other grounds for a new trial. Should these orders have been deducted from the amount of the verdict ? O’Keefe testified that when he turned the contract over to plaintiff, and signed the instrument hereinbefore set forth, it was with the agreement that the two orders should be first paid, and that the balance only should go ,;to plaintiff. This plaintiff denied, and testified that he knew nothing about these orders, and that he was to finish the work and receive the entire pay. The work having been done in pursuance of ■,the contract, to the acceptance of the officials designated in the contract, the city was bound to pay some one the contract price. There is ^'nothing in the contract restricting the right of the contractor to transfer his contract to another party, and we know of no law that, in the absence of any objection on the part of the city, would prevent such a transfer. Such a transfer may be by parol, and needs no writing to effectuate it. The'plaintiff claims by virtue of a transfer from O’Keefe, and of course has no greater rights than that transfer gives. If the agreement between him and O’Keefe was that these orders should have priority, he cannot accept the bene*138fits of the transfer and repudiate the conditions. The work was partially done at the time of the transfer, and for this work O’Keefe had the legal claim against the city. Whether the contract price for this work equaled the amount of these orders is immaterial, for plaintiff can claim no greater rights than the terms of the transfer gave him. On the other hand, if the transfer was absolute, without conditions, and of all claims for the work done, as well as that to be done, then O’Keefe would be concluded by such transfer, and the holders of these orders could equitably have no greater claim than for the contract, price for the work already done. They could not rightfully deprive-plaintiff of pay for the work that he did. The orders were not accepted, and no action could therefore be maintained on them as orders. It is only by regarding them as equitable assignments of claims for money due that the holders can have any rights. And such equitable assignment can reach only to the amount O’Keefe had earned prior to the transfer. 2 Story, Eq. §§ 1043, 1044; Lett v. Morris, 4 Sim. 607; Morton v. Naylor, 1 Hill, 583. In this view of the law applicable to the case, it does not appear clear that the court erred in granting a new trial, and under the rule laid down in the cases of Field v. Kinnear, 5 Kan. *233, City of Ottawa v. Washabaugh, 11 Kan. *124, it would be improper to reverse the decision of the district court.

The judgment of the district court is affirmed.